When the Senate considers Alberto R. Gonzales´ nomination for
attorney general this week, his critics will repeat the accusation
that he opened the door to the abuse of Al Qaeda, Afghan and Iraqi
prisoners. As Justice Department attorneys in January 2002, we wrote
the memos advising that the Geneva Convention on prisoners of war did
not apply to the war against Al Qaeda, and that the Taliban lost POW
privileges by violating the laws of war. Later that month, Gonzales
similarly advised (and President Bush ordered) that terrorists and
fighters captured in Afghanistan receive humane treatment, but not
legal status as POWs.

"Human rights" advocates have resorted to hyperbole and distortion to
attack the administration´s policy. One writer on this page even went
so far as to compare it to Nazi atrocities. Such absurd claims betray
the real weaknesses in the position taken by Gonzales´ critics. They
obscure a basic and immediate question facing the United States: how
to adapt to the decline of nation-states as the primary enemy in war.

The Geneva Convention is not obsolete — nor, despite his critics, did
Gonzales say it was. It protects innocent civilians by restricting
the use of violence to combatants, and in turn give soldiers
protections for obeying the rules of war. Although enemy combatants
may have killed soldiers or destroyed property, they are not treated
as accused criminals. Instead, nations may detain POWs until the end
of hostilities to prevent them from returning to combat.

The Geneva Convention provisions make sense when war involves nation-
states — if, say, hostilities broke out between India and Pakistan,
or China and Taiwan. But to pretend that the Geneva Convention
applies to Al Qaeda, a non-state actor that targets civilians and
disregards other laws of war, denies the reality of dramatic changes
in the international system.

Shortly after World War II, nations ratified the Geneva Convention in
order to mitigate the cruelty and horror of wars between the large
mechanized armies that had laid waste to Europe. Now, the main
challenges to peace do not arise from the threat of conflict between
large national armies, but from terrorist organizations and rogue
nations.

To believe that the Geneva Convention should apply jot-and-tittle to
such enemies reminds us of the first generals of the Civil War, who
thought that the niceties that were ideals of Napoleonic warfare
could be applied to battles fought by massive armies, armed with ever
more advanced weapons and aided by civilian-run mass-production
factories and industry. War changes, and the laws of war must change
with them.

Nations have powerful incentives to comply with the laws of war
contained in the Geneva Convention. A United States or a Germany will
care for captured prisoners, because any ill treatment could trigger
retaliation against its own soldiers.

A nation will be concerned with public opinion, both to maintain
popular support for its war effort and to keep its allies. Nations
have leaderships that can be held accountable, either legally or
politically, after the war. Nations have military and civilian
bureaucracies that interpret and follow uniform standards of
treatment.

Unfortunately, multinational terrorist groups have joined nations on
the stage of war. They operate without regard to borders and observe
no distinction between combatants and civilians. Our weapons for
controlling hostile states don´t work well against decentralized
networks of suicidal operatives, with no citizens or borders to
defend.

The problem of terrorist groups has been compounded by the emergence
of pseudo-states. Pseudo-states often have neither the will nor the
means to obey the Geneva Convention. Somalia and Afghanistan were
arguably pseudo-states; Iraq under Saddam Hussein was another.

Pseudo-states control areas and populations subject to personal, clan
or tribal rule. A leader supported by a small clique (like Hussein
and his associates from Tikrit) or a tribal faction (like the
Pashtuns in Afghanistan) rule. Political institutions are weak or
nonexistent. Loyalties depend on personal relationships with tribal
chiefs, sheiks or warlords, rather than allegiance to the nation.

Quasi-political bodies such as the Iraqi Baathist Party, the Taliban
or even the Saudi royal family exercise government power. Defeat of
the "national" leader or clique typically results in the complete
disintegration of the regime.

Multinational terrorist groups and pseudo-states pose a deep problem
for treaty-based warfare. Terrorists thrive on killing civilians and
flouting conventional rules of war. Leaders like Hussein and the
Taliban´s Mullah Mohammed Omar ignore the fates of their captured
soldiers. They have nothing riding on the humane treatment of
American prisoners.

A treaty like the Geneva Convention makes perfect sense when it binds
genuine nations that can reciprocate humane treatment of prisoners.
Its existence and its benefits even argue for the kind of nation-
building that uses U.S. troops and other kinds of pressures in places
like Somalia, Afghanistan and Iraq; more nation-states make all of us
safer. But the Geneva Convention makes little sense when applied to a
terrorist group or a pseudo-state. If we must fight these kinds of
enemies, we must create a new set of rules.

In that important respect, the Geneva Convention will become
increasingly obsolete. Rather than attempting — as Gonzales´ shrill
critics do — to deny that reality, we should be seeking to address it.

By Robert J. Delahunty and John C. Yoo, Robert J. Delahunty is a law
professor at St. Thomas University Law School in Minnesota. John C.
Yoo, a law professor at UC Berkeley, is a visiting scholar at the
American Enterprise Institute. They w (Copyright 2005 Los Angeles
Times 02/01/05)